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2019 Supreme(Guj) 347
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, A.C. RAO, JJ.
Himanshu @ Gabhu Navinbhai Keshavdas Nimavat - Appellant
Versus
State of Gujarat - Respondent
R/Criminal Appeal No. 914 of 2016
Decided On : 15-04-2019
For the Appellant : Mr. Nitin M. Amin
For the Respondent: Mr. K.P. Raval, App.
Headnote:
Indian Penal Code, 1860 – Section 302 – Offence of Murder – Appellant-accused inflicted a knife blow on the chest of the deceased – Bhavin, i.e. the son of the complainant – Chandrikaben. At earlier point of time, Bhavin was taken to the Referral Hospital, Chotila, by his friend Jignesh. Thereafter, he was taken to the Life Care Hospital, Rajkot. On the way to the Life Care Hospital, the deceased Bhavin conveyed to the complainant, i.e. Chandrikaben, and her daughter-in-law, i.e. Kajal, that the appellant – Gabhubhai Navinbhai came to him when he and his friend Jignesh were sitting near the Hanuman temple. The appellant reprimanded him by saying that why was he talking with his sister Nilam and all of a sudden he inflicted a knife blow on the right side of my chest – Held, dying declaration in this case is well corroborated with the evidence of the PW-9. The PW-8 and PW-10 have also supported the case of the prosecution that the deceased had given oral dying declaration in the ambulance van on the way he was taken to the Rajkot Hospital. Even if the evidence of the PW- 8 and PW-10 is discarded, considering the submission that the deceased was not in a condition to speak anything, there is sufficient evidence to establish the case against the appellant as per the settled position of law – contention regarding delay in filing the FIR is concerned, it is clear from the deposition of the PW-1 Dr. Rameshchandra Shah that he had telephonically informed about the incident to the Police Constable Shri Pargi at about 21.10 hours on the day of the incident. The prosecution has not examined the Police Constable Shri Pargi as a witness. The police had registered complaint at 5.00 a.m. after the inquest panchnama – Appeal dismissed
A.C. RAO, J.
1. The present Appeal is directed against the judgment and order dated 5th May 2016 passed by the Sessions Judge, Surendranagar, in the Sessions Case No.75 of 2014, by which the Sessions Court convicted the appellant herein – original accused for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment with fine of Rs.10,000/-, and in default of payment of the amount of fine, to undergo simple imprisonment for a further period of one year.
I. CASE OF THE PROSECUTION :
2. The case of the prosecution, in nutshell, is as under : (1) On 23.03.2014, the appellant-accused inflicted a knife blow on the chest of the deceased – Bhavin, i.e. the son of the complainant – Chandrikaben. At earlier point of time, Bhavin was taken to the Referral Hospital, Chotila, by his friend Jignesh. Thereafter, he was taken to the Life Care Hospital, Rajkot. On the way to the Life Care Hospital, Rajkot, the deceased Bhavin conveyed to the complainant, i.e. Chandrikaben, and her daughter-in-law, i.e. Kajal, that the appellant – Gabhubhai Navinbhai came to him when he and his friend Jignesh were sitting near the Hanuman temple. The appellant reprimanded him by saying that why was he talking with his sister Nilam and all of a sudden he inflicted a knife blow on the right side of my chest. He tried to reach hospital on his motorcycle but he fell down. When the ambulance reached at the Life Care Hospital, Rajkot, the doctor examined Bhavin and declared him dead. Thereafter, the dead-body of the deceased was taken to the Government Hospital, Rajkot, and the postmortem was performed.
(2) A complaint was registered at the Chotila Police Station vide I-C.R.No.35 of 2014 for the offence punishable under Section 302 of the Indian Penal Code. The investigation was handed over to the Investigating Officer. He recorded the statements of the witnesses, prepared the Inquest Panchnama, collected the postmortem report and carried out the investigation. On completion of the investigation, a charge-sheet was filed in the court of the Judicial Magistrate, First Class, Chotila. Thereafter, the Criminal Case No.449 of 2014 was registered. As the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions under Section 209 of the Code of Criminal Procedure. The Sessions Court framed the charge and recorded the plea of the appellant.
(3) The appellant-accused did not admit the charge and claimed to be tried. Thereafter, the Sessions Court conducted the trial.
3. The prosecution adduced the following oral as well as documentary evidence before the trial court in support of its case:
ORAL EVIDENCE
Sr. No.
Exhibit
Name of Witness
1
6
Deposition of... Dr. Rameshchandra Bhagubhai Shah
2
9
Deposition of... Panch Witness Devendrabhai Manubhai Dhadhal
3
11
Deposition of... Panch Witness Hiren Hasmukhbhai
4
14
Deposition of... Panch Witness Sunil Mansukhbhai
5
15
Deposition of... Panch Witness Shivkubhai Devayatbhai
6
17
Deposition of... Dr. Janmejay Krishnchandra Nathwani
7
24
Deposition of... Panch Witness Hakabhai Somabhai Parmar
8
25
Deposition of... the complainant Chandrika w/o. Mahesh H. Perani.
9
27
Deposition of... Witness Haresh @ Jignesh Bharatbhai Gondaliya
10
28
Deposition of... Witness Kajalben Wf./o. Vishal M. Perani
11
30
Deposition of... Witness Vishal Maheshbhai Perani
12
31
Deposition of... Witness Pravinbhai Prabhubhai Chauhan
13
32
Deposition of... Executive Magistrate Ramnikbhai Karshanbhai Vacchani
14
35
Deposition of... Circle Officer Hariombhai Kantilal Acharya
15
37
Deposition of... P.S.O. Hirabhai Palabhai Paraghi
16
38
Deposition of... P.S.I. Bhikhabhai H
